Republicans Bungle War-Powers Pushback

Although
John Boehner, speaker of the House of Representatives, laudably sent
a recent letter to President Barack Obama suggesting the possibility of a violation of the
War Powers Resolution in the attack on Libya, he was 90 days too late.
Obama’s violation did not occur this past weekend, but when the first
American aircraft attacked Libya.

The
War Powers Resolution (WPR)—passed in 1973 to rein in Richard Nixon’s
executive excesses in war-making and reassert the primacy of congressional
war powers as stipulated in the U.S. Constitution—has a requirement
that the president withdraw U.S. forces from hostilities within 60 days
(90 days if the president certifies that troop safety is at risk) unless
Congress has declared war or has specifically authorized by law U.S.
participation in the conflict. This provision has been argued
over by the Obama administration, Boehner, other members of Congress,
and the media. The problem is that this provision of the WPR doesn’t
apply to the attack on Libya.

Right
up front in the WPR is a provision titled “Presidential executive
power as commander-in-chief; limitation,” which is very clear:

The
constitutional powers of the president as commander in chief to introduce
United States Armed Forces into hostilities, or into situations where
imminent involvement in hostilities is clearly indicated by the circumstances,
are exercised only [author’s emphasis] pursuant to:

(1)
a declaration of war,

(2)
specific statutory authorization, or

(3)
a national emergency created by attack upon the United States, its territories
or possessions, or its armed forces.

Thus,
since the 60/90-day sunset period only applies when no prior congressional
declaration of war or statutory authorization for U.S. participation
in a conflict has been passed, it must apply only when there has been
an attack on the United States or its armed forces. The WPR is merely
trying to implement the clear intent of the Constitution’s framers
at the Constitutional Convention in 1787. They allowed for executive
war-making only when the nation was under imminent threat of attack;
even in these cases of emergency self-defense, the framers expected
the president to ask Congress for a declaration of war at the earliest
practical time. For all other military actions—that is, for
offensive attacks not involving self-defense—a declaration of war
was required before initiating hostilities. As a constitutional
law professor, Obama clearly knows the founders’ intent, and, before
becoming president, he made statements to that effect. As a candidate for
president in 2007, Obama got it right: “The
president does not have power under the Constitution to unilaterally
authorize a military attack in a situation that does not involve stopping
an actual or imminent threat to the nation.” How times have
changed!

The
framers’ intent was largely followed until President Harry S. Truman
called the Korean War a “police action” and violated the Constitution
by not asking Congress for a declaration of war. Since then, by
allowing the president to usurp their war powers, members of Congress
have found that they don’t have to take politically perilous stances
on whether the United States should be letting its sons and daughters
die in foreign wars.

So
the 60/90-day sunset provision only applies when the president commits
forces for self-defense during a national emergency—for example, after
the 9/11 attacks, had the Congress not authorized military action against
al-Qaeda and those that harbored the group, the sunset provision would
have applied to U.S. military actions in the “war on terror.”
In the assault on Libya, not only did Libya not first attack the United
States, it was not even a threat to the U.S. or its vital interests.

By
focusing on the 60/90-day sunset provision, however, the Republicans have
painted themselves into a corner. Obama has said that this provision
does not apply because current operations in Libya don’t rise to the
level of “hostilities”—that is, the U.S., after leading the dangerous
portion of the mission, the destruction of Libyan air defenses, has
now turned the turkey shoot on Libyan ground targets over to the NATO
allies and is now merely acting in a support role. (Even this
excuse is ridiculous, because the U.S. is still striking with drones to help its
allies attack ground targets.)

It
would be much more difficult for Obama to argue that the war, in its
most intense initial phase, didn’t rise to the level of “hostilities.”
But the Republicans have forfeited the stronger argument that any offensive
attack on Libya needed prior congressional authorization and have put
all of their marbles on the aforementioned inapplicable sunset provision. Thus, the Republican critique of the president has no legal basis.
This bungling will undoubtedly help perpetuate the fiction that the
president, absent an attack on U.S. territory or forces, has the power
to create a fait accompli by introducing troops into a foreign country
for 60 to 90 days without congressional approval.

More
important, in a republic, constitutionally enumerated legislative war
powers and restrictive laws such as the WPR are about preventing leaders
from tyrannically conducting wars of aggrandizement without approval
by the people’s houses rather than about keeping armed forces away
from dangerous hostilities. It is clear that the framers and Congress,
respectively, wanted congressional approval of military action even
under conditions of limited violence. For example, the WPR applies
“to the introduction of United States Armed Forces into hostilities,
or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances….” It then defines
“introduction of United States Armed Forces” to include
“the assignment of members of such armed forces to command, coordinate,
participate in the movement of, or accompany the regular or irregular
military forces of any foreign country or government when such military
forces are engaged, or there exists an imminent threat that such forces
will become engaged, in hostilities.” In Libya, even in their
reduced supporting role, U.S. forces are clearly coordinating with and
accompanying the forces of NATO allies in violation of the WPR.

Yet,
Obama—the hypocritical law professor and expert in legal legerdemain,
who went against the opinions of the top lawyers at the Department of
Defense and the Justice Department’s Office of Legal Counsel on whether
he needed to get congressional approval for the Libyan mission—is
unlikely to be reined in by timid Republican bunglers who cannot, or
choose not, to read the plain meaning of the Constitution and the War
Powers Resolution. In conclusion, the Republicans should revamp and strengthen their legal objection to Obama’s war in Libya and vote to cut off funding for the adventure.